Mead v. . Coolidge

Gray, J. I entertain no doubt as to the correctness of the judgment in this case. It is not reasonably possible, upon the reading of this will, to say that the testamentary scheme is not manifest. It is clear that the testator purposed, in the event of his son’s death, that all of the residuary estate, of which he was disposing, should go to his next of kin ; a description which, in the event of his having’ descendants, should be restricted to them; as he, specifically, directs in the eleventh clause. The event that has happened is the death of his son, childless, before that of either of testator’s brother or sisters; for whom the trust funds in question were created. This fact furnishes the basis for the appellant’s argument that the situation, which, actually, arose, has not been provided for. In effect, it is argued that there is no express gift, and none can be implied, of the three trust funds in the event which has happened and, hence, as to so much of his residuary estate, the testator has died intestate. It is true, ’of course, that the particular event, which has happened, is not described in the will and that we may infer that the testator did not suppose that his son would fail to survive the older lives; but that -will not suffice to defeat the evident testamentary scheme. This is not like the cases, to which the appellant refers us and which Vernon v. Vernon, (53 N. Y. 351), and, more recently, Brown v. Quintard, (177 N. Y. 75), conspicuously, illustrate, where there was no gift whatever' of the remainder. If we consider the seventh clause, we find this provision for the disposition of the trust funds, created for the testator’s brother and sisters, upon the death of a beneficiary : namely, that “ the principal of the trust *391 fund shall be added to the principal of the trust fund to be designated for my said son and thereafter shall be held, used and disposed o'f by the said trustees- in the manner hereinafter provided for the disposition of the principal of the said trust fund to be designated for my son.” There is no dispute about the right of the testator’s next of kin to the principal of the son’s trust fund under the provisions of the ninth clause, which contains the gift to them, and, in that clause, we have the pertinent language, that the provision for the final distribution of the principal of the son’s trust fund “ shall be construed to apply to and regulate the distribution of the principal of the trust funds for my brother and sisters, as such last mentioned trust funds may from time to time be added to the trust fund designated for my son,” etc. Then, in the tenth clause, we find the testator providing, if his son should not survive him, for the gift to his next of kin of “the portion of my estate which * * * would have constituted the trust fund hereinbefore directed to.be designated for him; including herein the principal of such of the trust funds mentioned in the £ seventh ’ paragraph hereof, upon the death of the beneficiary.” Now these various provisions would, without any doubt whatever, imply the gift in remainder of the several trust funds to the testator’s next of kin, were it not that, in the seventh and ninth clauses, the direction is contained, or the fact is assumed, that, upon the death of a beneficiary, his, or her, trust fund should be added to the son’s trust fund. Hence, the contention of the appellant that, as the son’s trust fund, by reason of the event of his earlier death, is non-existent, the inability to comply with the direction of these clauses, by the prior addition of each trust fund, as it fell in, to the son’s fund, results in a failure to have made a final disposition thereof. There may be room for such an argument; but I do not perceive its force. While the courts will not make wills for testators, whoso testamentary expressions are unintelligible, or hopelessly conflicting, or defective to so great an extent as to come under the condemnation of accepted rules for the construction of wills, *392 they will adopt a meaning which effectually and lawfully disposes of the property according to a manifest intention of the testator. The only difficulty in this case is that a condition, intermediate between the creation and the eventual vesting of the estate in those designated to enjoy it in remainder, became impossible. It could not be added to the trust estate created for the testator’s son; for that had fallen in and had been disposed of. But, evidently, that was not of the essence of the testator’s gift. At most, it must be regarded as incidental to the testator’s plan and as measuring a period of time,,within which the rights of the testator’s next of kin would still be contingent. We have observed that that class was to take, if the testator’s son failed to survive him, and that is, in my judgment, such conclusive evidence of an intention to give all of the residuary estate to the testator’s next of kin,.if he had no descendants through his child, as to support a gift by implication in the event, which has now happened, of his son’s failing to outlive the periods of the trust estates created, for his uncle and aunts. The condition that they should, severally, be added to the son’s estate became impossible of performance and as, in itself, it was not one essential to, but merely suspensive of the vesting of, the gift, it should be disregarded. If a minor part of the testamentary plan, as I think it to be, it must be subordinated to the effectuation of that plan. We might hold, from the irresistible evidence of the testator’s intention, that there was a gift by implication, of the trust estates as they fell in ; or, perhaps more correctly, that the direction in the seventh and ninth clauses was not an essential condition of a right in the next of kin to take and that the prior death of the son, merely, accelerated the vesting of the estates in the members of that class. For these reasons, I advise the affirmance of the judgment. Under the circumstances I think no costs should be awarded. Cullen, Ch. J., O’Brien, Martin and Werner, JJ., concur; Bartlett and Vann, JJ., not voting. Judgment affirmed.